SIR power not unlimited, must be transparent: SC to poll panel

Dwivedi referred to Section 21 of The Representation of the People Act, 1950, dealing with the preparation and revision of electoral rolls. He said clause 3 states that the ECI “may at any time, for reasons to be recorded, direct a special revision of the electoral roll for any constituency or part of a constituency in such manner as it may think fit”.

He said this allowed the poll body to deviate from the Registration of Electors Rules, 1960, if so required. “I am seeking an approval from the court that we have authority to deviate from the Rules. If the deviation is completely throwing out the Rules, it is a different thing,” he said.

Justice Bagchi pointed out that clauses 1 and 2 of Section 21 speak of preparing and revising the rolls “in the prescribed manner”. He wondered if this was not a leash on the commission’s powers.

“The only question you have to answer is if we were to hold that ECI has jurisdiction, would we hold that it’s completely untrammelled, or unregulated,” he said. “Perhaps it’s no longer res integra that authorities, however high, can have untrammelled jurisdiction. In that regard, please examine section 21 (2). It puts on a shackle of some sort.”

In legal parlance, res integra means a point of law or issue that has not yet been decided by a court.

Justice Bagchi said he was asking so because “Rule 13 is the power under which Form 6 (application for inclusion of name in electoral roll for first time voter or on shifting from one constituency to another constituency) is notified. Form 6 has about 6 documents. Your SIR has 11 documents. We want you to answer: Can you increase the number of documents, or eliminate documents which are there, for instance place of birth or residence, and say we will not look into documents in Rule 6, we will look into only 11 documents?”

“Because there cannot be any debate that it is not untrammelled. But it is unique to the Election Commission. The Election Commission in this respect has the widest discretion. However the intensive revisions also have a guideline, that is Rule 4 to Rule 20,” he said.

The CJI said even assuming the argument regarding clause 3 is true, “the question remains that when there is a special intensive revision of voter list under clause 3, it can lead to some civil consequences for a person who is already a registered voter. The manner (of the SIR) will be as you may deem it appropriate. Therefore, when an action is likely to have an effect on the civil rights of people, why should we not expect of you that the procedure which you will ultimately contemplate and follow will be not less transparent than (when it is done) under clause 2.”

Dwivedi said, “I have conceded in the beginning that I have to stand the test of Article 14 – reasonable, just and fair, transparency. Ease of voter… and keeping in mind Article 326 (which says elections to the House of the People and to the Legislative Assemblies of States to be on the basis of adult suffrage)… Nobody can deviate from Article 326. It’s not my submission that we can frame any kind of SIR. I will have to satisfy that it is just and fair.”

Justice Bagchi said the question is “how far can you deviate (from the Rules)… No power can be untrammelled. No power can be completely unregulated.”

The CJI said, “While the power should not be diluted, it should not be left like an unruly horse. It should be regulated.”

Dwivedi said, “My submission is that my SIR is sustainable under Article 324 (which says the superintendence, direction and control of elections shall vest with the Election Commission) read with Section 21 (3)… I am saying the scope under Section 21 (2) is limited, under 21 (3) wider.”

“But not unlimited,” Justice Bagchi said. Dwivedi agreed: “It can’t be unlimited.”